Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 339-29

Filed 01/31/2006

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1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 03-MK-2485

--- - ---- - - -- - - -- ------------- -- -- - ------- -- -- ------

DEPOSITION OF CAMILLE MELONAKIS-KURZ
April 29, 2004

- - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -CAMI LLE MELONAKI S - KURZ ,

Plaintiff,
vs.
HEARTLAND HOME FINANCE, INC.,

Defendant.

---- ---- --- -- - - --- ------- - ------- ------------------APPEARACES:
NICHOLS, KASTER & ANDERSON, LLP By Donald H. Nichols, Esq.

and
Paul J. Lukas, Esq.

4644 IDS Center
80 South 8th Street Minneapolis, Minnesota 55402 Appearing on behalf of Plaintiff.

ICE MILLER
By David J. Carr, Esq. One American Square Box 82001 Indianapolis, Indiana 46282 Appearing on behalf of Defendant.

Also Present: Josh Nielsen-Mayer

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1 Q Let me see that.
2 A (Deponent complied.)

3 Q And this appears to be one of your
4 appraisals, correct?

5 A Right.
6 Q So this is not a document that was handed to
7 you when a loan officer left?
8 9
A
Q

Correct.
So you got that whole packet -- whole

10 Exhibit 1 is not something that was handed to you when

11 another loan officer left?
12
13
A
Q

Right.
This is all of your documents from Heartland

14 Home Finance?
15
A

These are scraps because most everything I

16 shredded when I left.
17
Q

Okay. Well, why didn't you shred these?
They were a thorne.

18

A

19 Q When you left, did you do an exit interview
20 with Josh? I'm talking about Josh Nielsen-Mayer, the
21 branch manager.
22 23
A
Q

No, I just wrote a letter.
When you say Josh, you i re talking about Josh

24 Nielsen-Mayer?
25
A

Right.

Melonakís-Kurz Dep.

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1

Q

So when I say "Josh," you i 11 know who we i re

2 talking about?
3

A
Q

Right. I just wrote a letter.
Did he do any sort of exit interview wi th

4

5 you?
6

A

Well, he said, "Clean out your desk."

7 Pretty much that i s all I remember. And I wrote the

8 termination letter.
9
Q

Did he ask you to bring in your Heartland

10 materials so they could be turned over to the next loan

11 officer?
12 13
A
Q

I think I left everything on the desk.

What about the materials that you brought in

14 this morning?
15
A

Oh, these were in a file simply because I

16 had put them somewhere and forgotten them.
17
Q

Did Josh ask you to bring all of your

18 Heartland materials in?
19
A
Q

I don i t remember.

20

Okay. Is there anything that would refresh

21 your recollection?
22
23
A
Q

No.

Let i s talk about this next document.

24

A

This one is just asking for referrals. It i s

25 just another one of their little systems just to show

Melonakís-Kurz Dep.

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1 but all I'm asking for is an answer to my questions.

2 This document at the front, this one, can
3 you tell me what that is?
4
A

This is a lead sheet. Comes in off the Web

5 site LowerMyBills. com.
6
Q

Can you tell me why there i s a date of 9-25

7 in the upper right-hand corner in red ink?
8

A

No, I don i t know why. Somebody left a

9 message 9-25 and 9-28.
10
Q

Were you still working on this lead after

11 you left Heartland?
12
13
A
Q

No.
Do you remember when you left Heartland?
Yeah, late August.

14
15

A
Q

So you have no explanation as to why there's

16 a 9-25 notation on that lead?
17
A
Q

That's not my handwriting.

18 19

Whose is it?

A

These things were just given to me to work

20 on. That could have been from the year before. These

21 things were given to me to work on when this guy left
22 the company. This just shows I was working at home.
23 Q How much were you working at home?

24 A Three hours every night, roughly 12 hours,
25 12 to 15 hours a week, and that's conservative.

Melonakís-Kurz Dep.

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1

Q

And was there ever any discussion about

2 working at home?
3

A

Yeah. He used to tell me, "Come into the

4 office and work," and I'm like, "Well, that sounds good,

5 but the problem is the phone is ringing at home. These

6 people are calling me at home. I need to talk to them

7 when they call."
8
Q

Why were they calling you at home? You had

9 a phone at Heartland, didn i t you?
10
A

With the -- we had just one line, and

11 actually there was quite a few times they could not get

12 ahold of us and could not get a message. Like on the
13 Carpenter loan, they could not get ahold of me on the
14 voice message, so they called me at home on the weekend.
15
Q

How did they have your home phone?
It's on literature, company fax, my business

16

A

17 cards.
18
Q

How many loan officers were working there

19 when you were working there?
20 21
22 23
A
Q

I think -- I don't know, eight or nine.

And there was one phone line?

A
Q

Uh-huh.
There was more than one phone?
Right, yeah.

24
25

A
Q

Each loan officer had their own phone?

Melonakís-Kurz Dep.

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1
2 3

Q

There i S a fax cover sheet.
Okay, yeah, it wasn't on here.

A
Q

Your home phone number is not on your

4 Heartland fax cover?
5

A

No, but not very many clients had a fax

6 machine.
7
Q

But it wasn i t on your business card either,
I think it was.

8 was it?
9
A
Q

10

And you didn i t keep any of your Heartland

11 business cards?
12 13
A
Q

I try to keep stuff thrown away.

Were you ever told by Josh not to work on

14 Saturday because you'd already worked 40 hours for the

15 week?
16
A

Later, but the first two months we had to

17 work on Saturdays. Those that were not producing had to
18 come in on Saturdays.
19
Q

So the answer to my question would be "yes"?

20

A
Q

Later, uh-uh. Yes, later.
So after the first couple months?

21
22 23

A
Q

Uh-huh.
Okay. And were you ever told to go home

24 early so that you could work on Saturday; in other
25 words, work fewer hours during the week because Josh

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1 2 3

MR. LUKAS: Certainly.

Q (By Mr. Carr) But beyond that, nothing else that you i re aware of that would allow us to track your
hours?

4
5 6

A No.
Q Why didn i t you put your hours worked at home
on your time sheets at work?

7
8 9

A I just was under the assumption that it was
not allowed. Didn't really discuss it, but I had to do
it to get the work done.
Q

10

11
12 13

Right, and why did you have that assumption

that it was not allowed?

A Because they were really controlling and
controlled everything, and I just -- to tell you the
truth, I was so busy I didn i task.

14 15 16
17 18

Q And, in fact, were you ever told not to work
40 hours?
A

Over 40?

19
20

Q In fact, were you told not to work over 40

hours?

21
22 23

A Yeah, at the very end. Q Okay.
A About a month before I qui t, but we were
also told by Marty not to go home without the three
credit pulls.

24
25

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1 me. I never did it, you know, because I wanted to. I
2 always did it because I had to to keep the loan.
3
Q

So my question is: Did you continue to work

4 these hours after you were told not to work over 40?
5
6

A
Q

Yes, as needed.

And, again, I apologize if I previously

7 asked this question, but you never went to Josh and
8 said, Hey, I heard I i m not supposed to work over 40, but

9 I'm working 7:30 a.m. to 10:00 p.m. to get done what I

10 need to get done? Did that conversation occur?

11 A No, because I wasn't going to change their
12 system. They were dead set on their system.

13 Q And their system was three apps a day?

14 A Three credit pulls, lots more apps.
15
Q

Sorry, three credit pulls a day. And that

16 was a goal, and did they ever say, This will make you

17 success ful if you get three credi t pulls a day?
18 19
A
Q

Yeah.
Okay. Did you ever tell anyone at Heartland

20 the hours that you were working?
21
22
A
Q

I don't remember.

Is there anything that refreshes your

23 recollection?
24
25
A
Q

No, I don't remember.

Okay. All right. Let i s take a look at

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1 signature when it was C. Kurz, and maybe Josh signed for

2 you other times or somebody else?
3

A
Q

Somebody did, yeah.

4

Would you -- are you aware of what the

5 protocol was with respect to Josh signing for other

6 people?
7

A

Well, most managers sign the forms because

8 they i re responsible for the office i s paperwork.
9
Q

Uh-huh.
It's a part of every business.

10 11

A
Q

Okay. Well, would you take a look through

12 these and tell me if any of them appear, any of your

13 entries appear inaccurate?
14
A

Well, like I said, those are the times I was

15 at the office. There's a lot of work that you have to

16 do in closings and picking up docs and taking stuff out
17 and meeting with people in their home that requires you

18 to be out of the office for
19
Q

Uh-huh. So as far as you can tell, looking

20 through these, you do believe these are accurate time 21 sheets for your time in the office?
22
23
A
Q

Yes.
Did you -- strike that. You already

24 answered it. You may have already answered it. I'll
25 ask it one more time, and if counsel wants to object, he

Melonakís-Kurz Dep.

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1 can. Did you ever approach Josh or anyone else and say,
2 Can I put down my time for work out of the office?

3 A No, because I knew that they were not going
4 to bend. You had td do it their way.

5 Q How did you know that?

6 A Because of the way they ran the files and
7 went through your desk, wanted to look at everything,

8 controlling all the loans. It's an extremely
9 controlling company, and they i re not going to listen to

10 one person.
11
Q

Right, but you said that Josh was a good

12 manager and was professional and helpful?
13
A
Q

Yes.

14

So you fel t also he was approachable, too,
Yes, but Josh is a company man. He iS

15 right?
16
A

17 younger, and younger men are sold out to their company.
18
Q

Okay. Any other reason, other than what

19 you've already described, as to why you didn i t approach
20 Josh or anyone else at Heartland management about

21 putting your time out of the office on your time sheets?
22 23
A
Q

No. I just felt it was expected of me.
Any other reason?

24

A

And they weren't going to change it.

25 They i re not going to change it. One person isn't going

Melonakís- Kurz Dep.

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1 to change it.
2
Q

I think you said no, but -- to my last

3 question?
4
5
A
Q

No, i did not talk to him about it.

Camille, have you finished your review of

6 Tab 5?
7 8

A
Q

Uh-huh.
Are you comfortable that those --

9

A
Q

They i re accurate.
Thank you.

10

11 Now, have we covered all the conversations
12 that you had with anyone at Heartland about your hours?

13 Was there any conversation about your hours, your

14 working outside of the office, et cetera, that we have

15 not discussed?
16
A

We didn't have time to converse with

17 anybody. We were slammed. I ran $2.5 million of
18 business through there, and there wasn i t time for

19 anything.
20 21
22
Q

So the answer to my question would be no?

A
Q

Right.

Okay. All right. Let i s turn to Tab 6. Can 23 you identify Tab 6 for me?
A
Q

24
25

It's a sheet. It's part of our contract.
Yeah, well, it says, "Senior loan officer

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1 that you had with your counsel. When you talked with
2 the attorney, you mean the attorneys that are with you

3 here today, or your prior attorney?
4
5

A
Q

Attorneys here today.

Okay. How did the -- how did you come to

6 know of the Nichols firm? Because of Town & Country.

7 You already answered it.
8

Okay, let's turn to Exhibit (sic) 12. Tell

9 me if you can identify that.
10
A
Q

That's our employment agreement.

11

Now, behind 12 at the very last is 541 which

12 we have in there twice. That was not actually part of
13 your employment agreement, correct? That's that senior
14 loan officer compensation schedule. That i s the document

15 we talked about earlier.
16
A

Yeah, that was an earlier date. This latest

17 one was signed in the summer -18
19
Q

Right.
- - July, and thi s one was March.

A
Q

20 21 22
23

Right. Is that your signature on Page 13?
Yeah, it is.

A
Q

And are these your little initials --

A
Q

Yep.
-- on the last couple pages?

24
25

There are also some strikeouts as you look

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1 through the contract. Are those strikeouts that you
2
3

negotiated with Josh?

A Let's see here.
Q

4
5
6

On Paragraph 11 on Page 5 is stricken.

A

No, I just lined them out and initialed

them.
Q

7 8
9

That was at your prompting?

A

Uh-huh.

Q You did not want to agree to Paragraph 11 so
you crossed it out and put your initials on it?
A
Q

10

11
12
13

Uh-huh.
And Josh was okay with that?
He mus t have been.

A
Q

14
15 16
17

Did you ever discuss it with Josh?

A
Q

No.
Who gave you the contract?

A
Q

Ann did.
Ann?

18 19

A
Q

Yes.
And what were her instructions to you?
"Read it and sign it."

20 21
22

A
Q

So you read it, marked out what you didn't

23 like and signed it?
24
25
A
Q

Right. That's what the attorneys always do.

You betcha.

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1
2 3

Did you read it?
A
Q

Yes.
Okay. Did you read -- so you read the whole

4 contract?
5 6

A
Q

Uh-huh.
So if you read the whole contract, I guess

7 that means that you read Page 4, the very bottom line
8 where it says, "Comply with all policies and procedures

9 of the employer which relate to verification of hours

10 worked and pre-approved overtime hours"?
11
A

That i s why I figured that he wasn't going to

12 go along with -- you know, they ask you to do the

13 impossible, and then they tell you, you know, "Do it in

14 less time."
15
Q

Did you ever seek preapproval for overtime

16 hours?
17

A
Q

No.
Let's take a look at Tab 13. Can you

18

19 identify that document?
20
A
Q

That's another employment agreement.

21
22 23

That was your first one, right?

A
Q

Uh-huh.
And did you read and sign this one also?

24
25

A
Q

Yes.
Okay. All right. Take a look at Tab 14.

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1 Tell me if you can identify that document for me,
2 3

please.
A
Q

Yeah.
Is that -- what is that?
Handbook, employee handbook.

4
5 6
7 8

A
Q

Acknowledgement of receipt, correct?

A
Q

Right.
And did you, in fact, get an employee

9

handbook?
A
Q

10

Yes.
Did you turn it back in when you left?

11
12
13

A

It was on my desk. I don't need to take it

home.
Q

14 15 16
17

So you -- so it was left at Heartland when

you

left?
A
Q

Yeah.

Or did you shred it?
I didn't shred it. I just left it there.
And that is your signature on there,

18

A
Q

19 20 21 22
23

correct?
A
Q

Right.
Did you read the employee handbook?

A
Q

Yes.
All right. The next item is behind Tab 15,
me
if that's your notation at the top and

24 25

and

tell

tell

i Melonakís-Kurz Dep.

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1

A

Nothing. They just told us they would be in

2 there investigating in the office and just go on about

3 your business, and we did.
4

Q

Okay. Did you ever talk to any of the

5 Department of Labor investigators?
6
7

A
Q

No.
Did you ever pull them aside in any manner

8 or communicate that you had a concern that you were not

9 being paid all hours for which you worked?
10 11
12
A
Q

No.
Why not?

A

Because it's not going to change their

13 system.
14
Q

Well, are you aware that people did get paid

15 16
17 18

money as a result of the Department of Labor
investigation in 2003?

A No. The only thing I knew was I was in
Josh's office one time and a loan officer called from

19 another fi le, and he goes, "We don't owe her any money,"

20 and then he hangs up the phone and he calls corporate 21 lawyers and he goes, "I need a letter written." And 22 because I had some understanding about Pre-Paid Legal, I 23 said, "Let me guess. The letter says, 'As per the
24 agreement you signed, you're not getting anything'"?

25 And he's like, "Well, it's usually a little stronger

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1 than that." And so that's why I suspected that I wasn't

2 going to get paid either.
3
Q

So as we si t here today, you have no

4 knowledge that there were loan officers who were paid
5 money as a resul t of a Department of Labor

6 investigation?
7
8

A
Q

I did not know that.

Other than your statement that you felt that

9 the Department of Labor couldn't change the system -10
A

Well, they might. I just didn't feel I

11 could.
12
Q

Right, but my question was why didn't you

13 contact the Department of Labor? They were right there

14 in the office investigating. Why didn't you take this
15 opportunity to say, Hey, I've been working all these

16 hours at home, and I haven i t been paid for them?
17
A

I was just trying to get my loans closed.

18 We were buried.

19 Q Any other reason?
20 A I was just extremely busy, and I didn't
21 think it was when I'm on the clock, I don't talk to
22
people about

I'm there to work. I'm not there to
And so you didn't talk with, at any point

23 talk to anybody else, so I just focus on my work.
24
Q

25 with any loan officer who did receive money from the

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1 Department of Labor?
2
3

A
Q

No.
You didn't make a call to the Department of

4 Labor, but the Department of Labor never called you to

5 talk to you?
6

A
Q

No.
Were you aware it was going on?

7
8

A

Josh said that they were going to be in the

9 office and to just go about your business as normal. If

10 they ask a question, answer it, but don't be bothered
11 about it. So I was just in my little cubicle working.

12 Q Any other interaction with the Department of
13 Labor?
14
15 16 17 18 19
A
Q

(Deponent shook head.)

Nothing?
Huh-uh.
Again, a verbal response is required.

A
Q

A
Q

I i m sorry, no.
Okay. If you would, turn to behind Tab 17.

20 This is part of what your counsel produced, and I would

21 like you to take a look at HF 38 and 39 and tell me if
22 you recognize the handwriting on that.
23
A
Q

No, I don't know whose this is.

24

Okay. At the very bottom it starts, "These

25 hours will be the same, the time sheets," and then it

Melonakís-Kurz Dep.